Chief Justice of India KG Balakrishnan’s recommendation to remove Justice Soumitra Sen of Calcutta High Court for misconduct points to some serious flaws in the system for appointment of judges.
In fact, India may be the only democracy where judges appoint themselves through a procedure that is kept secret till the President clears the names of those to be appointed.
That’s why Justice Soumitra Sen could become a judge in the first place despite allegations of misappropriation against him. But in other democracies, a thorough public scrutiny is a must before a name is cleared for the judge’s post.
Currently, judges are appointed by a committee of judges – called the collegium – headed by the CJI. After deciding on the candidates, the collegium sends a list of names to the government for the President’s final approval. The government may object to any name, but cannot stop anybody from becoming a judge.
A Supreme Court decision in 1993 virtually shifted the power to appoint judges from the government to the judiciary.
Law Minister HR Bhardwaj said, “Courts are not getting judges on merit. There are regular deadlocks in collegium meetings. And the public perception of this system is of give and take.”
Bhardwaj accused the judiciary of “not giving due importance to quality” maintain its hold over appointments. “The worst part is that after re-writing the law on judges’ appointment, the judiciary wanted to make the cabinet advice subservient to the collegium's recommendations,” Bhardwaj said.
Senior advocate Rajiv Dhavan said, “This policy worked well initially, particularly during Nehru’s time. But during the successive governments, this led to political representatives being appointed as judges with blessings of the judiciary.” He suggested a national judicial commission be formed as the solution.
Former CJI JS Verma said, “What has led to the deterioration in the quality of judges is the lack of transparency in the procedure. I fail to understand why should secrecy be maintained once the process is over.” He added, “neither the judiciary nor the government should have the power to veto each other in the process. It should be based on a common understanding.”
The Parliamentary Standing Committee on Law & Justice said in its latest report that the procedure is not encouraging the best to enter the judiciary. The committee has asked the government to ensure that the details of the applicants “should be made public and transparent, through the High Court and Supreme Court websites”.